Can Connecticut take porn from its prisoners? Should it?

Many concerns come to mind when someone thinks about spending time in prison. First and foremost, there is always the risk of being shanked with a very, very sharp toothbrush. For the financial criminals, there is the distinct shame of being bested by Bernie Madoff in a game of badminton. This is to say nothing for the fable of being made someone’s bitch. But what about a lack of porn?

Connecticut’s prisons were very tolerant of pornography in its prisons until recently. (source.) Now that the Connecticut prisons are pulling the plug on this entertainment, the inmates are threatening to sue. This is not isolated to the Northeast, either, as a Michigan man filed suit over a guard’s refusal to provide him with pornography, claiming the guard’s action violated his constitutional rights. (source.)

Not to put too dull of an edge on it, but prisons can basically do what they please to inmates. Correctional facilities have staked out the lowest standard of review available under law. Prisons can enact policies that run counter to prisoners’ First Amendment rights as long as the regulations are rationally related to a legitimate penological interest, a standard that has consistently led to judicial affirmation of anti-pornography policies in the big house. Thornburgh v. Abbott, 490 U.S. 401, 413 (1989); Smith v. Dept. of Corrections, 219 Or. App. 192, 198, 182 P.3d 250 (2008). In contrast, the next-lowest standard of review – and generally the lowest for non-prisoners – is rational basis review, where a government action must be rationally related to a legitimate governmental interest to be constitutional (and intended as such – no post hoc analysis is allowed).

Courts review a prison’s limitation on the inmates’ First Amendment rights by using the three-prong reasonableness test enunciated in Thornburgh:

whether the governmental objective underlying the regulations at issue is legitimate and neutral, and whether the regulations are rationally related to that objective;

whether there are alternative means of exercising the right that remain open to prison inmates at de minimis cost to penological interests; and

the impact that accommodation of the asserted constitutional right will have on others (guards and inmates) in the prison

As seem in prong 3, rehabilitation interests of prisoners are not all that may be, or is, considered when evaluating these policies. Courts have found that preventing the harassment of employees who work in the prison is a valid justification for a limitation on sexually explicit materials among inmates. See, e.g., Mauro v. Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999).

The reach of these policies has been broad. In Washington v. Werholtz, 2008 WL 4998689 (Kan. App. 2008), the Kansas appellate court upheld a policy that banned all sexually explicit material, which included any display, actual or simulated, or description of a variety of acts, including intercourse and masturbation. While such a policy will cover Larry Flynt’s oeuvre, it will also ban trashy romance novels and some important works of fiction, such as L’ Histoire d’ O.

As long ago as 1989, Iowa grappled with this issue, which made its way into the New York Times. Under Iowa’s policy, only inmates who had been psychologically screened and approved to view the material – with prisoners whom prison psychologists believed would be obsessed with the material being denied access to it. (source.) The policy drew a bizarre distinction between how various forms of pornography were treated; inmates who could view porn were allowed to keep “soft-core” content in their cells, while hardcore content was only viewable in a well-supervised reading room. One then-inmate complained that the reading room was impossible to enjoy under this policy, as the guards filed through the area as if it were a freeway – denying him any privacy in which to evaluate the materials.

In 2006, Indiana instituted a similar policy. The Indiana Commissioner of the Department of Corrections previously explained that state’s pornography prohibition as something in the interest of both inmates and facility employees. The Commissioner’s explanation appeals to stay at home moms everywhere, exempting medical and anthropological instances of nudity, but adopts an “I know it when I see it” definition of pornography. (source.) Ultimately, Indiana’s restrictions amount to subjective, content-based limitations determined by what individuals find stimulating, as opposed to some objective standard by which the content can be evaluated, such as penetration. (Id.)

I strongly disagree with these policies. While I have not been incarcerated in prison, I question the harmful effects pornography can have on its inmates, and am deeply troubled by the broad sweep that these policies can have – swallowing up non-explicit materials that have considerable value. While prison exists to deny agency to its inmates, one cannot help but wonder if these policies beg the question about pornography’s supposed harmfulness. In fact, research shows that more porn = less rape. While there are other covariants at play, as everyone who has read Freakonomics knows, the results of isolating pornography and analyzing the porn-rape relationship have been in porn’s favor. Beyond rape, the gratification of pornography may replace or inhibit other criminal or undesired activities as well. In short, the premises that prison guards’ penological interests rest upon – that porn is bad and makes people do bad things – are beginning to be proven as bullshit.

When I debated the Indiana commissioner on Fox News, his rationale was to “promote public safety in Indiana.” Give me a break. Is Mary Homemaker “safer” because a convict doesn’t have a porn mag? He also stated that he wanted to see his prisoners devote their time to more constructive pursuits. This being Fox, I didn’t get a chance to cross examine him, but I presume he didn’t mean ass-raping one another. The biggest load of bullshit he slung was the meme that prisons need to ban porn because they want to promote a non-harassing environment for prison guards.

Seriously? You want to be a prison guard, but you can’t handle the sight of a guy reading Hustler? I got news for you if you’re “offended” by the sight of a guy jacking it to porn — you can’t handle being a security guard at a candy store, let alone being a prison guard.

The rationale for these bans clearly has nothing to do with “safety,” and it has nothing to do with the feminist-imposed “hostile work environment” bullshit. It has to do with an erotophobic attitude, fostered by superstition, and then fertilized with the crap of cheap political points.

Nonetheless, prisons have erected a high wall around themselves, their guards, and their asinine policies. In a way, it is logically consistent for an enterprise that exists largely as a consequence of unjust and counterproductive policies such as the war on drugs to have special legal protection allowing it to further screw the people entrusted to its care. See Thornburgh, 490 U.S. at 407 (describing moden prison administration as an “inordinately difficult undertaking”). As such, challenged to these policies, however well deserved and meritorious they are, seldom succeed.